State v. Fox

• Decision Date: 04 March 2004
• Docket Number: No. 2003–032.,2003–032.
• Citation: 150 N.H. 623,843 A.2d 309
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Earle K. FOX, III.

150 N.H. 623

843 A.2d 309

The STATE of New Hampshire

v.Earle K. FOX, III.

No. 2003–032.

Supreme Court of New Hampshire.

Argued: Jan. 7, 2004.

Opinion Issued: March 4, 2004.

Peter W. Heed, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

DUGGAN, J.

The defendant, Earle K. Fox, III, was convicted after a jury trial in Superior Court (Hampsey , J.) on four counts of being a felon in possession of a firearm. See RSA 159:3, I (1994) (amended 2001). On appeal, the defendant argues that: (1) the trial court erred in refusing to order the State to provide him with ownership records of the firearms; and (2) the State presented insufficient evidence to support his conviction for possessing an antique .22 caliber revolver. We affirm.

The record supports the following facts. On December 30, 1999, the Pelham police called the defendant's father, Earle K. Fox, II(Fox), to inform him that they were going to arrest the defendant on an unrelated charge. Fox told the police that he believed the defendant may have several firearms in his trailer, including a sawed-off shotgun, a .45 caliber pistol, and an SKS rifle, since he had previously seen the defendant handling each of the firearms.

The police went to the trailer and arrested the defendant pursuant to the arrest warrant. The police later executed a search warrant for the firearms in the trailer. During the search, the police found a loaded sawed-off shotgun in a utility closet, a loaded .45 caliber pistol with an ammunition clip behind books on a bookshelf, a loaded antique .22 caliber revolver in a holster at the head of the defendant's bed, and a loaded SKS rifle with extra ammunition under the planking of the defendant's bed. Subsequently, because the defendant had a prior felony conviction, he was indicted for being a felon in possession.

The defendant first argues that the trial court erred when it denied the defendant's motions for discovery of records regarding the ownership of the four firearms. Prior to trial, the defendant asked the court to order the State to obtain certain records from Fox, arguing that the records would indicate that Fox, not the defendant, owned the firearms. The prosecution argued that the motions were "overbroad, untimely, and a fishing expedition." The court denied the motions, noting that the defendant had never asked Fox for the information.

The defendant argues that in denying his motions, the court violated his right to produce all favorable proofs under Part 1, Article 15 of the New Hampshire Constitution and to due process under the Fifth Amendment of the U.S. Constitution.

We review the trial court's pretrial discovery ruling for an unsustainable exercise of discretion. See State v. Spaulding, 147 N.H. 583, 589, 794 A.2d 800 (2002) ; cf. State v. Lambert, 147 N.H. 295, 296, 787 A.2d 175 (2001) (explaining the unsustainable exercise of discretion standard). We will affirm the trial court's decision unless the defendant demonstrates that the court's ruling was clearly untenable or unreasonable to the prejudice of his case, Lambert, 147 N.H. at 296, 787 A.2d 175, and that any error was prejudicial to his substantive rights, State v. Ellsworth, 136 N.H. 115, 117, 613 A.2d 473 (1992). The State argues that the trial court's refusal to order Fox to turn over the records for the firearms was harmless error. Assuming without deciding that the trial court's ruling was error, we agree with the State that any error was harmless.

The State bears the burden of proving that an error was harmless. State v. Goodale, 144 N.H. 224, 232, 740 A.2d 1026 (1999). Error is not harmless unless the State proves beyond a reasonable doubt that the error did not affect the verdict. Id. In deciding whether the State has met its burden, we consider the strength of the State's evidence presented at trial, as well as the character of the excluded evidence, including whether the evidence was inconsequential in relation to the State's evidence. Id. If the excluded evidence is merely cumulative, we may conclude beyond a reasonable doubt that it would not have affected the jury's verdict. State v. Enderson, 148 N.H. 252, 255, 804 A.2d 448 (2002).

As a threshold matter, we note that the State did not have to prove the defendant owned the firearms. Instead, the State could prove that the defendant had the firearms "in his possession" or "under his control." RSA 159:3, I(a). Generally, a person is in control of a firearm if the person has the ability to determine who may have the ultimate use of that firearm. See State v. Haycock, 136 N.H. 361, 363, 616 A.2d 481 (1992). Here, the evidence was overwhelming that the defendant controlled the firearms.

First, the defendant had control over the trailer in which the police discovered the firearms. In the 1990s, the defendant and his family bought the trailer, which they put on his parents' property for the defendant's exclusive use. Though Fox testified that he owned the trailer, had a key to it, and paid all bills for it, only the defendant...